Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Wednesday, July 30, 2008

Paraguay's New President and Ex-Bishop: Reform, Religion, and Constitution

It was reported today that the Holy See has "concedeu a redução ao estado laical ao presidente eleito do Paraguai, o ex-bispo Fernando Lugo, anunciou nesta quarta-feira (30) em Assunção, o núncio apostólico, Orlando Antonini." Santa Sé concede estado laical ao presidente eleito do Paraguai, O Globo July 30, 2008 (the Papal Nuncio Orlando Antonini announced today in Asunción that the Holy See has agreed to reduce to lay status Paraguay's President elect, the former Bishop Fernando Lugo). Lugo is viewed as a center left politician, whose election was made possible, apparently, as a consequence of a split within the dominant and conservative Colorado party. See Profile Fernando Lugo, BBC News On Line, April 12, 2008.

Born in 1951, Mr Lugo became a priest in 1977, and served as a missionary in Ecuador for five years. In 1992 he was appointed head of the Divine Word order in Paraguay, was ordained a bishop in 1994, and then served for 10 years as the bishop of the poor region of San Pedro. There, his support for landless peasants earned him the reputation of being "the bishop for the poor". He came to national prominence in March 2006 when he helped lead a big opposition rally in the capital, Asuncion. Id.

His most ambitious plans include the usual--land reform ("His most prominent pledge is to renegotiate the terms of the country's two huge hydro-electric projects" Id.) and the extraction of more money from developed states--in this case his principal target is Brazil (which has increasingly assumed 1st world status within the hothouse that his Latin American political relations). "In particular he wants Brazil to pay Paraguay a lot more money for the electricity it buys from their jointly-owned Itaipu dam, the world's biggest hydroelectric plant. He says he will take Brazil to the World Court in The Hague if necessary." IOd.

Having become political--and successfully so, Lugo had a choice. He could become his own man or remain within the magisterium of the Church, and subject to its management, though from a high enough position of authority that he might be able to fudge a bit. But under John Paul II and his successor Benedict XVI, the Church jas become far more willing to assert control over the periphery, and certainly over its Bishops. More importantly, Benedict XVI has spent a career being suspicious of and working against Latin American style progressive political action on the part of its priests. Benedict XVI, as Cardinal Ratizinger, was personally credited with developing the Church's position on Catholic Liberation Theology that effectively drove it underground. See Joseph Cardinal Ratzinger, Congregation For The Doctrine Of The Faith, Instruction On Certain Aspects Of The "Theology Of Liberation" Aug. 6, 1984 ; Larry Catá Backer, Law: Benedict XVI and the Constitution of Political States, Law at the End of the Day (June 30, 2007; See also Edward A. Lynch, The Retreat of Liberation Theology, HOMILETIC & PASTORAL REVIEW 12-21 (Feb. 1994).

But it is clear that Lugo comes from that tradition. "He served for a decade as Bishop of the backward region of San Pedro, where his support for landless peasants earned him the nickname “Bishop of the Poor”." Richard Owen, Pope May Defrock Fernando Lugo, Former Bishop Voted Paraguay President, Times Online, April 23, 2008. Nonetheless, he had been kept in check to some extent precisely because he remained both priest and bishop--and thus bound by ties of obedience to the magisterium and the discipline of its head--the Bishop of Rome. Indeed, "Mr Lugo’s decision to enter politics aroused fears in the Vatican of a return to “liberation theology” in Latin America. However, Pope Benedict is said to have privately made clear to the Paraguayan Bishops Conference that he intended to co-operate with Mr Lugo for the good of Latin America if he was elected." Id. The most effective means of controlling this priest was to retain him in that role.

But that did not work. Lugo was openly rebellious. And he could afford to be. In place of the comfort of the Church (and his position therein) he was willing to substitute political party and political office (assuming he could get it). In response to a Vatican letter suggesting that he refrain form political activity, he " replied “The Pope can either accept my decision or punish me. But I am in politics already.” Today Mr Lugo was reported as saying that he “sincerely apologised to members of the Church” if his “disobedience to Canon Law” in entering politics had caused them pain." Id.

But what to do. The Church at first tried a half way measure--it refused to permit him to resign. The theory was powerful, and powerfully controlling: "Vatican suspended him from his duties “a divinis”, meaning that he could no longer say Mass or carry out other priestly functions such as administering the sacraments." Id. The hope was that this would blow over--once Lugo lost the election he would return to the Church (subject to appropriate admonishment and education in the proper role of priests). But it did not work out that way, and the Vatican had to concede.

The victory presents both the Church and the notion with dilemmas and opportunities. From the perspective of the Church, one is faced with a former priest that appears ready to institutionalize as a political program the substance of liberation theology. ""From today on, my cathedral will be the nation", declared Fernando Lugo last December as he announced he was determined to seek Paraguay's presidency upon leaving behind his life serving the Catholic Church." Gabriela Perdomo, Paraguay's Man of God and Politics, AnusReid.com, May 22, 2008. Depending on the way in which Lugo goes about this, there may be conflict with the Church. On the other hand, a political liberation theology not directly toed to the Church, and not directed by priests, may be separated enough to fall within the Church's comfort zone. The Paraguayan church remains split. "For their part, conservative Catholic Church leaders accused Lugo of betraying the church's supposed non-political role in Paraguayan society, although more moderate and progressive churchmen rapidly rallied to his support." Alfred Seymour Hopkins, Former Catholic Bishop Enters the Political Arena, Worldpress.org, February 22, 2007.

More interesting still will be whether Lugo attempts, as a formal matter, to bring the institutions of the state more closely in line with the principles of religious rule and authority. "The Paraguayan president described South America as “a Christian continent where poverty is the ulcer that is eating away the great majorities.”" James Suggett, Chávez and Paraguayan President-Elect Fernando Lugo Discuss Economic Relations, Venezuelaanalysis.com, June 20, 2008. Although under art. 24(1) the state has no official religion, Article 24(2) of the Paraguayan constitution provides that "(2) Relations between the State and the Catholic Church are based on independence, cooperation, and autonomy." Constitution of Paraguay, art. 24(2). More interesting still, the religious freedom provisions of the current constitution limits religious freedom protections may be restricted as provided in the "Constitution and the law." Id., art. 24(1). Moreover, the Constitution includes an enigmatic provision: "The role played by the Catholic Church in the historical and cultural formation of the Republic is hereby recognized." Constitution, supra, art. 82. But see id., at art. 88(1) ("No discrimination will be permitted against workers for reasons of race, sex, age, religion, social status, and political or union preference.").

On the other hand, the left-center rhetoric will likely cause some concern among Paraguay's current power structure. There is evidence of the nature of the incoming regime. "The President-elect of Paraguay, Fernando Lugo, made his first diplomatic visit to Venezuela Wednesday and Thursday. Lugo and Venezuelan President Hugo Chávez attended a Catholic mass in the Caracas barrio Curicuao, and discussed future bilateral relations. “I hope the friendship between Venezuela and Paraguay may be a symbol of brotherhood and solidarity within Latin America,” said Lugo, a retired Catholic Bishop, upon arriving in Caracas." James Suggett, Chávez and Paraguayan President-Elect Fernando Lugo Discuss Economic Relations, Venezuelaanalysis.com, June 20, 2008. It would not be surprising to see Paraguay join ALBA in the near future. And certainly it is likely that markets based state economic policies will be changed as Paraguay begins experimenting with more state control oriented economics. No surprise for a man used to control. "The Venezuelan president urged Lugo to “evaluate the possibility” of joining the Bolivarian Alternative for the Americas (ALBA), a fair trade organization initiated by Venezuela and Cuba which now includes Nicaragua, Bolivia, and Dominica." Id. And certainly both Chávez and Cuba's Fidel Castro have long been great friends of liberation theology, especially its potential to serve as the foundation of political economic policy. See Larry Catá Backer, Cuba and Brazil Part I: Castro Lectures Lula da Silva, Law at the End of the Day, January 26, 2008.

Moreover, the framework for attacking the Colorado party and the personal currently within the state apparatus has already been announced. It will be accomplished by resort to that useful trope--corruption and housecleaning (though in this case reality and rgetoric might have a basis in fact). "Lugo has pledged to crack down on corruption and channel Paraguay’s wealth into social programs." “Bishop of Poor” Fernando Lugo Wins Paraguayan Election, Ending 61 Years of Conservative Rule, Democracy Now!, April 22, 2008. The situation might be explosive given the stature of the principal potential targets. " The two men that many Paraguayans want to see investigated are the outgoing President, Nicanor Duarte Frutos, and the Colorado leader in the Senate, Juan Carlos Galaverna." Tom Hennigan, Paraguay Victor Fernando Lugo Faces Huge Challenge, Tines OnLine, April 22, 2008.

Opposition might result in either co-opting or radicalizing the former priest. My guess is the later. Bishops do not like being thwarted, even by the Holy See. They do not take well to disobedience. It is likely that opposition among Paraguay's elite will result in fireworks. Moreover Lugo is a man used to hierarchy and control. It is unlikely that the strictly regimented system on Paraguay will give way to something that would not, in the end, resemble the structures and control of the Church or the Colorado Party, but with Lugo's allies standing in for those of the vanquished rivals. "“It’s time to re-found the republic,” Lugo says, repeating well-rehearsed lines. “It’s time that jobs go to the most qualified, the most honest – not to those who know people in the government.”" Patrick J. McDonnell, Ex-Bishop Roiling Stagnant Political Waters in Paraguay, Los Angeles Times, April 20, 2008.

Moreover, the political program will likely embroil Brazil. This is particularly true with respect to the proposed program of land reform.

One of the main pledges of the Alliance is to implement land reform. Paraguay has one of the world’s most unequal distributions of ownership and Mr Lugo has promised plots for all the country’s landless peasants. This is likely to be opposed by the agribusiness sector, one of the few parts of the economy that is legal and dynamic thanks to booming soya beans, beef and cotton exports. To add to the sensitivity of the issue, many of the biggest farmers are Brazilian immigrants.

More interesting still will be the effects of the victory on Paraguayan constitutionalism. It is clear that the recent wave of leftist political victories has produced an intense interest in reinventing constitutionalism in Latin America. A commentator on the scene noted:

across Latin America you have had this huge leftward shift. I mean, some of them, it’s more progressive, such as Venezuela’s Hugo Chavez, Evo Morales in Bolivia, Rafael Correa in Ecuador, who, you know, are trying to create the new constitutions. They’re really trying to bring power and give power down to the base and flip the whole system upside-down. Now, you have other countries, like Michelle Bachelet in Chile, Tabare Vazquez in Uruguay, who are more kind of liberal democrat, but still on the left.

“Bishop of Poor” Fernando Lugo Wins Paraguayan Election, Ending 61 Years of Conservative Rule, Democracy Now!, April 22,2008 (quoting the journalist Michael Fox). A merger of principles of liberation theology, politically restated in a constitution, might make for an interesting wrinkle on the development of constitutionalist principles, especially with respect to the substantive norms guiding state behavior. It will be particularly interesting to see how or whether principles of theocratic constitutionalism will seep into Paraguayan politics.

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

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About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.